Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of San Diego County, Nos. SCD199422, SCD213463, SCD213464, Laura W. Halgren, Judge.
NARES, J.
In March 2010, following two separate jury trials, Joseph Todd Williams was convicted in case No. SCD213463 of (1) willfully obtaining and using the personal identifying information of another person for the unlawful purpose of obtaining obtain credit, goods and services (count 1: Pen. Code, § 530.5, subd. (a)), and (2) grand theft (count 2: § 484g, subd. (a)); and he was convicted in case No. SCD213464 of (3) burglary (count 1: § 459), and (4) defrauding an innkeeper by nonpayment in an amount over $400 (count 3: former § 537, subd. (a)(2)).
All further statutory references are to the Penal Code.
In 2006, before he committed these offenses, Williams pleaded guilty in a third case, No. SCD199422, to one count each of (1) grand theft (§ 487, subd. (a)), (2) defrauding an innkeeper by nonpayment in an amount over $400 (former § 537, subd. (a)(2)), and (3) unlawfully taking and driving a rental vehicle without the owner's consent and with the intent to permanently or temporarily deprive the owner of title to and possession of the vehicle (§ 10851, subd. (a)). In that case, he was granted probation in August 2006. His probation was revoked in 2008. On April 23, 2010, the court sentenced Williams in all three cases to an aggregate prison term of five years eight months.
In April 2008 Williams admitted in case No. SCD199422 that he was in violation of his probation by failing to report to the probation department upon his release from jail.
Williams appeals the judgments in all three cases, contending in case No. SCD213463 that (1) the court violated his federal constitutional right to confrontation by admitting in evidence three business records (a Sycuan Casino receipt, a Flexcar statement, and a VISA statement), which he claims were testimonial in nature, without affording him the opportunity to cross-examine the creators of those records; and (2) the court abused its discretion when it awarded victim restitution to the Comfort Inn and miscalculated by $8 the victim restitution it awarded to hotels.com.
Although Williams filed a notice of appeal in each of the three cases, his briefing on appeal raises no issue concerning the judgment entered in case No. SCD199422. Accordingly, any claims concerning that judgment are deemed forfeited.
In case No. SCD213464, Williams contends (3) the evidence was insufficient to support his count 1 burglary conviction; and (4) the court violated his state and federal constitutional rights to due process and a fair trial when it failed to sua sponte define the term "prima facie evidence" contained in the special jury instruction it gave in connection with the offense of defrauding an innkeeper by nonpayment in an amount over $400 (former § 537, subd. (a)(2)) charged in count 3 because the term has a technical meaning peculiar to the law. We affirm the judgments in case Nos. SCD213463, SCD213464, and SCD199422.
FACTUAL BACKGROUND
A. Case No. SCD213463
1. The People's case
In 2007, Williams, who was living in a halfway house, rode his bicycle to the East Village Community Church where he met Pastor Jimmy Hubbard. Williams told Hubbard his name was J.T. Morgan and said he wanted to become a member of the church. After learning that Williams was a computer repair person, Hubbard allowed him to work on the church computers on a voluntary basis. During the time he worked at the church, Williams had full access to all of the records and financial information stored in the computers. He eventually obtained a key to the church.
Shortly after he met Hubbard, Williams began driving a rental car known as a "Flexcar."
In November 2007 Hubbard's daughter, Beverly Thomas, a secretary at the church who worked in the same office with Williams and often left her purse at her desk when she used the restroom, noticed some unauthorized charges on her credit cards. Among those unauthorized charges were charges of $256.59 through hotels.com for a hotel room at the Sycuan Casino, $357.68 through Orbitz for a hotel room at the Comfort Inn, and $153.55 for a car rented from Flexcar.
Thomas never gave Williams permission to use her credit card information. Neither she nor her husband had stayed at the Sycuan Casino or the Comfort Inn, nor had they rented a car from Flexcar. Thomas eventually was able to get these unauthorized credit card charges reversed. She testified she never used the credit cards in question to purchase anything online.
Michelle Lewis, Williams's ex-fiancee, testified she stayed at a variety of hotels with Williams during this period, including the Comfort Inn at the Gaslamp Convention Center and the hotel at the Sycuan Casino. Williams told her he got the money for the hotels from his computer business. Lewis testified she rode in a Flexcar that Williams drove.
In April 2008 San Diego Police Department Detective Thomas Odaniell participated with other officers in a search of Williams's apartment. The officers found a hotel reservation receipt (which the court received in evidence marked as People's exhibit 3) for $256.59 from hotels.com for a hotel room at the Sycuan Casino, and a receipt (received in evidence marked as People's exhibit 4) for $153.55 for a car rented from Flexcar. These receipts listed Williams as the customer, either as Joseph Williams or J.T. Morgan, but listed Thomas's billing address and credit card numbers. The officers also found several hotel room access keycards and business cards that stated "Information Technology, J.T. Morgan."
Although two Comfort Inn keycards were marked for identification at trial, the prosecutor did not offer them into evidence due to his inability to lay a proper foundation.
2. The Defense case
The defense presented no affirmative evidence.
B. Case No. SCD213464
1. The People's case
Evidence of prior offense (case No. SCD199422 )
In early 2006 Ketra Carter (whose name then was Ketra Slayton) was the general manager of the Residence Inn in Rancho Bernardo. Carter testified that sometime between January 25 and January 27, 2006, Williams checked in to the Residence Inn in Rancho Bernardo under the name of J.T. Morgan and provided a credit card that had sufficient funds to pay for lodging there for at least five nights. He represented that he worked for a company called "I.T. Scorpion." However, on February 14, 2006, the credit card Williams used under the name J.T. Morgan was declined. Carter attempted to contact him for payment, but was only able to contact him by e-mail. In her e-mail, Carter requested payment and a credit card. Williams advised Carter that his credit card had "maxed out, " but told her his employer was going to pay his bill and provide him with a corporate credit card. Carter testified that Williams's debt ultimately reached $7,059, which was never paid. The parties stipulated that Williams was convicted on June 15, 2006, in case No. SCD199422 for defrauding an innkeeper by nonpayment over $400 (former § 537, subd. (a)(2)) during the period from January 25, 2006, to April 30, 2006.
Williams's probation officer in case No. SCD199422 testified that she interviewed Williams in late June 2006. Williams stated he worked for Scorpion I.T. Services.
Evidence of current offense
In early January 2007 Archie Stringfield was the general manager of the Courtyard Marriott in Old Town. Stringfield testified that on January 19, 2007, Williams checked into the Courtyard Marriott under the name of J.T. Morgan. When he checked in, the hotel staff obtained authorization for $200 on the credit card he used. However, when the charge for Williams's stay exceeded that amount, the card he had provided was declined.
On February 7, 2007, when Williams's unpaid bill was approaching $4,000, Stringfield and his assistant general manager went to Williams's room to obtain another form of payment. Williams expressed his regret and indicated to them that his boss, Richard Sturgeon, would pay the bill, which reached the sum of $3,900. Despite several e-mails to Williams's purported employer, no payment was ever received from him or Williams.
2. The defense case
The defense presented no affirmative evidence.
DISCUSSION
I. RIGHT TO CONFRONTATION
Williams first contends in case No. SCD213463 that the court violated his federal constitutional right to confrontation by admitting in evidence three business records─People's exhibits 3, 4, and 9─that he claims were testimonial in nature, without affording him the opportunity to cross-examine the creators of these records. We reject this contention.
A. Background
At trial, the prosecution sought to introduce these business records (discussed, post) to prove that Williams stayed at various hotels and rented a car while charging those bills to Thomas's credit card.
Defense counsel, while acknowledging these documents were business records, objected to the admission of these records without the in-court testimony of the custodians of the records. Citing Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___ [129 S.Ct. 2527] (Melendez-Diaz), Williams's counsel argued that these business records were testimonial in nature because "a certificate from a custodian of records attesting that the business records were kept in the ordinary course of business, ... etc., qualifies as testimonial hearsay, " and thus their admission in evidence without such testimony from the custodians of records would violated Williams's Sixth Amendment right to confrontation.
Evidence Code section 1271, commonly referred to as the business records exception to the hearsay rule, provides: "Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if: [¶] (a) The writing was made in the regular course of a business; [¶] (b) The writing was made at or near the time of the act, condition, or event; [¶] (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and [¶] (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness."
The court, finding that California's courts had not ruled on this issue and that there was a split in authority in the federal courts, overruled the defense objection and admitted business records contained in People's exhibits 3, 4, and 9, stating:
"I note that a key point in Melendez-Diaz[, supra, 129 S.Ct. 2527, ] was that the information they were evaluating in the affidavit there had a direct impact on the guilt of the accused. Here, the affidavit simply allows documents to come into evidence, and then it's the documents themselves that may or may not bear on the guilt of the accused, not the affidavit. It's just providing the foundation for the documents to be considered."
B. Sixth Amendment Confrontation Clause
The confrontation clause of the Sixth Amendment to the United States Constitution guarantees that, "[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him." (U.S. Const., 6th Amend.)
The United States Supreme Court discussed this constitutional guarantee in Crawford v. Washington (2004) 541 U.S. 36 (Crawford) and its progeny, including Melendez-Diaz, supra, 129 S.Ct. 2527. However, the contours of the confrontation clause remain elusive because the high federal court has not defined, for purposes of that clause, precisely who is a witness and what constitutes testimony. (See Melendez-Diaz, supra, at pp. 2531-2532; Davis v. Washington (2006) 547 U.S. 813, 826-827; Crawford, supra, 541 U.S. at pp. 51-52.) Rather, the Supreme Court has described a "core class of 'testimonial' statements" that are covered by the confrontation clause, the various formulations of which include (1) " 'ex parte in-court testimony or its functional equivalent─that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially'[; (2)] 'extrajudicial... statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions'[; and (3)] 'statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.' " (Crawford, supra, 541 U.S. at pp. 51-52; Melendez-Diaz, supra, 129 S.Ct. at pp. 2531-2532.)
In Crawford, the Supreme Court explained that the confrontation clause applies to " 'witnesses' against the accused─in other words, those who 'bear testimony.' [Citation.] 'Testimony, ' in turn, is typically '[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.' " (Crawford, supra, 541 U.S. at p. 51.)
Most recently, in a case involving a prosecution for distributing and trafficking in cocaine, the United States Supreme Court analyzed a defendant's right to confront the preparer of a "certificate of analysis" (or affidavit) from a laboratory analyst that contained only the bare-bones statement that " '[t]he substance was found to contain: Cocaine.' " (Melendez-Diaz, supra, 129 S.Ct. at p. 2537.) Concluding that the laboratory analyst's affidavit was "functionally identical to live, in-court testimony" (id. at p. 2532), the Supreme Court held that, for purposes of the confrontation clause, the analyst was a witness, the analyst's affidavit was "testimonial, " and thus the affidavit could not be admitted in lieu of in-court testimony unless the analyst was unavailable to testify at trial and the defendant had a prior opportunity to cross-examine the analyst. (Ibid.) The Melendez-Diaz court reasoned that the prosecution's failure to present the analyst at trial for cross-examination prevented the defendant from examining "what tests the analyst[] performed, whether those tests were routine, and whether interpreting [the] results required the exercise of judgment or the use of skills that the analyst[] may not have possessed." (Id. at p. 2537.)
C. Analysis
We conclude the court's admission of People's exhibits 3, 4, and 9 in evidence did not violate Williams's federal constitutional right to confrontation because the documents included in those exhibits, which Williams acknowledges are bona fide business records, were not created for the purpose of establishing or proving some fact at trial; they are not the functional equivalent of in-court testimony within the meaning of Melendez-Diaz, supra, 129 S.Ct. at pages 2531-2532, and Crawford, supra, 541 U.S. at pages 51-52; and thus they are not testimonial in nature for purposes of the confrontation clause of the Sixth Amendment.
In Crawford, the Supreme Court explained that "[m]ost of the hearsay exceptions cover[] statements that by their nature [are] not testimonial─for example, business records...." (Crawford, supra, 541 U.S. at p. 56.)
In Melendez-Diaz, the high court clarified that "[b]usiness... records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because─having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial─they are not testimonial." (Melendez-Diaz, supra, 129 S.Ct. at pp. 2539-2540, italics added.) Regarding the hearsay statements contained in the laboratory analysts' sworn "certificates of analysis" or affidavits at issue in that case, each of which reported that the laboratory analysis of one of the seized substances showed it contained cocaine as the prosecution alleged, the Melendez-Diaz court stated: "Whether or not they qualify as business or official records, the analysts' statements here─prepared specifically for use at [the defendant's] trial─were testimony against [him], and the analysts were subject to confrontation under the Sixth Amendment." (Id. at p. 2540, italics added.)
Here, the business records in question, unlike the certificates of analysis in Melendez-Diaz, are nontestimonial for purposes of the Sixth Amendment confrontation clause because they were "created for the administration of [a business] entity's affairs and not for the purpose of establishing or proving some fact at trial." (Melendez-Diaz, supra, 129 S.Ct. at pp. 2539-2540.) Specifically, People's exhibit 3 is a hotels.com receipt in the amount of $256.69 showing that Joseph Williams booked a reservation at the Sycuan Resort & Casino in November 2007 using a billing address for "Beverly Thomas." People's exhibit 4 is a Flexcar billing statement for October 2007, addressed to JT Morgan, showing a credit card payment of $153.55. People's exhibit 9 is a credit card statement showing a Flexcar charge in the amount of $153.55 that was posted on October 31, 2007.
Williams cites no evidence─and our review of the trial record discloses none─indicating that any of the business records at issue here, as opposed to the standard custodian of records declarations submitted at trial to satisfy the foundational requirements set forth in Evidence Code section 1271 for admission of these exhibits under the business records exception to the hearsay rule (see fn. 4, ante), was "prepared specifically for use at [his] trial" (Melendez-Diaz, supra, 129 S.Ct. at p. 2540). Having conceded that each of the challenged business records included in exhibits 3, 4, and 9 is a business record, Williams implicitly acknowledges that each such record was created "in the regular course of a business." (Evid. Code, § 1271.) In sum, we conclude Williams's contention that People's exhibits 3, 4, and 9 constitute testimonial hearsay for purposes of the federal confrontation clause is without merit.
II. RESTITUTION
Williams also contends in case No. SCD213463 that the court abused its discretion when it (1) awarded victim restitution to the Comfort Inn in the amount of $347.96, and (2) miscalculated by $8 the victim restitution when it awarded same to hotels.com. in the amount of $264.59. We affirm the restitution awards to the Comfort Inn and hotels.com.
A. Applicable Legal Principles
" '[I]n every case in which a victim has suffered economic loss as a result of the defendant's conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court.' [Citation.] Restitution must ' "be set in an amount which will fully reimburse the victim for his or her losses unless there are clear and compelling reasons not to do so...." ' [Citations.] ' "While it is not required to make an order in keeping with the exact amount of loss, the trial court must use a rational method that could reasonably be said to make the victim whole, and it may not make an order which is arbitrary or capricious." ' " (People v. Phu (2009) 179 Cal.App.4th 280, 283.)
The party seeking restitution has the burden of providing an adequate factual basis for the party's claim. (People v. Giordano (2007) 42 Cal.4th 644, 664.) The People make a prima facie case for restitution based on the victim's testimony or other claim or statement of the amount of the victim's economic loss. (People v. Millard (2009) 175 Cal.App.4th 7, 26.) Once the People have met their burden of making a prima facie case, the burden shifts to the defendant to show the victim's loss is other than what the victim claims. (Ibid.)
1. Standard of review
We review restitution orders for abuse of discretion. (People v. Giordano, supra, 42 Cal.4th at p. 663.) The abuse of discretion standard " 'asks in substance whether the ruling in question "falls outside the bounds of reason" under the applicable law and the relevant facts.' " (Ibid.) "When there is a factual and rational basis for the amount of restitution ordered, no abuse of discretion will be found." (People v. Phu, supra, 179 Cal.App.4th at p. 284.)
C. Analysis
1. Comfort Inn
Williams contends the court abused its discretion by ordering him to pay victim restitution to the Comfort Inn because, "while People's Exhibit 13, Thomas's Discovery card statement, showed a charge to Orbitz for the Comfort Inn of $347.96, there was no corresponding document that indicated that [he] had made this charge." He asserts that "[h]is name is not mentioned on the Discovery Card statement" and, "[w]hile Michelle Lewis testified that she stayed with [him] at a Comfort Inn, she could not remember when she stayed there." Williams thus maintains that "[t]here was no evidence or even reasonable inference that could be drawn that the stay that Lewis recalled was the stay that was charged to Thomas'[s] credit card."
Williams's contention is unavailing as the prosecution presented sufficient evidence linking him to this unauthorized charge. Lewis, testified she had stayed with him at the Comfort Inn at the Gaslamp Convention Center. The victim, Thomas, and her husband disputed the charge on her Discover card for a stay at the Comfort Inn. Williams's fraudulent use of Thomas's credit card information, for which he was convicted in this matter, connected him to the unauthorized Comfort Inn charge because that charge was transactionally related to the other fraudulent charges he made using her credit card information. We conclude the foregoing evidence is sufficient to support a reasonable inference that Williams was responsible for the unauthorized Comfort Inn charge, and thus the court did not abuse its discretion in awarding victim restitution to the Comfort Inn in the amount of $347.96.
2. Hotels.com
The evidence at trial showed that Williams fraudulently used Thomas's credit card information to make an unauthorized credit card charge in the amount of $256.59 through hotels.com for a hotel room at the Sycuan Resort & Casino. Although Williams claims the court miscalculated by $8 the amount of victim restitution it awarded to hotels.com. ($264.59), the record shows the court in fact awarded the correct amount: $256.59. It is true, as Williams points out, that the reporter's transcript of the April 23, 2010 sentencing hearing in case No. SCD213463 indicates the court stated it was awarding $264.59 in victim restitution to hotels.com. However, the court's sentencing minutes show the court awarded $256.59 in victim restitution to hotels.com. Furthermore, the probation report prepared for that hearing shows a recommendation that the court award $256.59 to hotels.com, and the abstract of judgment shows the court awarded victim restitution to hotels.com in the correct amount of $256.59.
We conclude the court awarded victim restitution to hotels.com in the correct amount. Accordingly we affirm the judgment in case No. SCD213463.
III. SUFFICIENCY OF THE EVIDENCE
Williams next contends in case No. SCD213464 that the evidence was insufficient to support his count 1 burglary conviction. Specifically, he contends the only reasonable inferences that can be drawn from the evidence is that he had sufficient credit card funds to pay for his initial stay at the Courtyard Marriott and thus "any intent to not pay for subsequent nights at the hotel would have arisen after [he] had already entered the hotel." We reject this contention.
A. Standard of Review
When assessing a challenge to the sufficiency of the evidence, we apply the substantial evidence standard of review, under which we view the evidence "in the light most favorable to the judgment below to determine whether it discloses substantial evidence─that is, evidence that is reasonable, credible, and of solid value─such that any reasonable trier of fact could find the essential elements of the charged crime or allegation proven beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578; Jackson v. Virginia (1979) 443 U.S. 307, 319.)
"The same standard of review applies to cases in which the prosecution relies mainly on circumstantial evidence." (People v. Maury (2003) 30 Cal.4th 342, 396.)
"The uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable." (People v. Scott (1978) 21 Cal.3d 284, 296.) We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Jones (1990) 51 Cal.3d 294, 314.)
B. Analysis
"A burglary is committed when the defendant enters one of the premises specified in [section 459] with the intent to steal something or commit any felony." (People v. Magallanes (2009) 173 Cal.App.4th 529, 535-536; see § 459.) Thus, the crime is complete after the defendant makes an unlawful entry with the intent to commit a felony, as "the crime of burglary can be committed without an actual taking." (People v. Magallanes, supra, at p. 536.)
Here, the prosecution presented substantial evidence from which any reasonable trier of fact could conclude beyond a reasonable doubt that Williams intended to defraud the Courtyard Marriott by nonpayment in excess of $400, as alleged in the information, when he entered the hotel. Although it is undisputed that Williams checked into the hotel with a credit card that had sufficient funds to pay for his initial stay there, the jury heard evidence that Williams committed the same type of offense, using the same scheme of presenting a credit card with sufficient funds for the initial stay but then continuing to stay after further credit on the card was declined, at another hotel just one year earlier. Specifically, the jury heard evidence, based on a stipulation by the parties, that Williams was convicted in 2006 (in case No. SCD199422) of defrauding an innkeeper by nonpayment over $400 (former § 537, subd. (a)(2)) during the period from January 25, 2006, to April 30, 2006. The jury also heard the testimony of the former general manager of the Residence Inn in Rancho Bernardo that in January 2006 Williams checked into the Residence Inn under the name J.T. Morgan and provided a credit card that had sufficient funds to pay for lodging there for at least five nights. She indicated that the credit card Williams used under the name J.T. Morgan was thereafter declined, and Williams's hotel bill was never paid.
Regarding the burglary charge involving the Courtyard Marriott, the jury also heard the testimony of the general manager of the hotel, who testified that on January 19, 2007, Williams checked in to the Courtyard Marriott under the name J.T. Morgan. Stringfield indicated that when Williams checked in, the hotel staff obtained authorization for $200 on the credit card he used, but when the charge for Williams's stay exceeded that amount, the card he had provided under the name J.T. Morgan was declined.
Although Williams maintains he is not engaging in the proscribed practice of asking a reviewing court to reweigh the evidence (see People v. Jones, supra, 51 Cal.3d at p. 314), he is essentially doing just that by ignoring the evidence of his similar 2006 prior offense and his use of an alias in committing the current offense. We reject his claim that the only reasonable inference a reasonable trier of fact could draw from the foregoing substantial evidence is that any intent he had to not pay for subsequent nights at the Courtyard Marriott after the available funds on the credit card he used were spent, arose after he entered the Courtyard Marriott. A reasonable trier of fact could easily and properly infer from the evidence of Williams's prior similar offense and his renewed use of the J.T. Morgan alias that he intended to defraud the Courtyard Marriott when he entered the hotel premises, using the same modus operandi he previously used in 2006 to defraud the Residence Inn. We conclude Williams's insufficiency-of-the-evidence claim challenging his burglary conviction is without merit.
IV. CLAIM OF INSTRUCTIONAL ERROR
Last, Williams contends in case No. SCD213464 that the court violated his state and federal constitutional rights to due process and a fair trial when it failed to sua sponte define the words "prima facie" in the term "prima facie evidence" contained in the special jury instruction it gave in connection with the count 3 offense of defrauding an innkeeper by nonpayment in an amount over $400 (former § 537, subd. (a)(2)) because the term has a technical meaning peculiar to the law and "[t]he most logical inference that can be drawn is that the jury simply discarded the words [in the instruction that] they didn't understand." We conclude this contention is unavailing.
A. Background
In an information filed in 2008, Williams was charged in count 3 with defrauding an innkeeper by nonpayment in an amount over $400 in violation of former section 537, subdivision (a)(2), which provided in part:
"(a) Any person who obtains any... accommodations at a hotel, inn, ... motel, ... without paying therefor, with intent to defraud the proprietor or manager thereof... is guilty of a public offense punishable as follows: [¶]... [¶] (2) If the value of the... accommodations is greater than four hundred dollars ($400), by imprisonment in a county jail for a term of not more than one year, or in the state prison." (Italics added.)
Because (as the court found) there was no standard CALCRIM instruction for this charged offense, the prosecutor proposed and the court gave, without a defense objection, the following special instruction regarding the elements of the count 3 former section 537, subdivision (a)(2) offense, which the court found "tracks the Penal Code":
"The defendant is charged in Count [3] with defrauding an innkeeper by non-payment over $400. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant obtained accommodations at a hotel, motel, or inn without paying; [¶] 2. The combined value of the accommodations was over $400; [¶] AND [¶] 3. The defendant intended to defraud the proprietor and manager."
The prosecutor also proposed the following two-paragraph special jury instruction regarding evidence of leaving hotel accommodations without paying as prima evidence of intent to defraud, which was based on former section 537, subdivision (c):
Former section 537, subdivision (c) provided: "Evidence that a person left the premises of such... hotel, inn, ... motel... without paying or offering to pay for such... use of facilities, or accommodation, ... shall be prima facie evidence of the following: [¶] (1) That the person obtained such... use of facilities or accommodations with intent to defraud the proprietor or manager." (Italics added.)
"Evidence that a person left the premises of such a hotel, motel, or inn, without paying or offering to pay for use of facilities or accommodation shall be prima facie evidence of the following: [¶] That the person obtained use of facilities or accommodations with intent to defraud the proprietor or manager.
"If evidence establishes beyond a reasonable doubt that a person left the premises of a hotel, motel, or inn, without paying or offering to pay for use of facilities or accommodations, you may, but are not required to, infer that the person obtained use of facilities or accommodations with the intent to defraud the proprietor or manager." (Italics added.)
Defense counsel objected to this proposed instruction on federal and state due process grounds, claiming it "lessens the People's burden of proving beyond a reasonable doubt that the defendant intended to defraud an innkeeper." Defense added that, although there was probable cause to "make [Williams] answer for the charges, ... telling the jury the fact that he leaves without offering or paying is prima facie evidence of his intent to defraud is misleading. It lessens the burden of proof and violates his due process rights." (Italics added.)
The prosecutor responded that "the People essentially copied [the proposed instruction] right out of... [former] section 537."
After taking the matter under submission, the court gave the two-paragraph instruction over Williams's objection. However, in response to defense counsel's objection that the instruction would lessen the People's burden of proof, the court added a third paragraph regarding the People's burden of proof:
"Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt."
B. Applicable Legal Principles
"The trial court must instruct even without request on the general principles of law relevant to and governing the case... [including] instructions on all of the elements of a charged offense." (People v. Cummings (1993) 4 Cal.4th 1233, 1311.)
Once the court has instructed on the general principles of law, a defendant must request additional instructions if he or she believes amplification or explanation is necessary. (People v. Maury (2003) 30 Cal.4th 342, 425-426; People v. Anderson (1966) 64 Cal.2d 633, 639.)
" '[T]he trial court's duty to see that the jurors are adequately informed on the law governing all elements of the case... is not always satisfied by a mere reading of wholly correct, requested instructions.' " (People v. Miller (1999) 69 Cal.App.4th 190, 207.) " '[T]he trial court has a sua sponte duty to give explanatory instructions even in the absence of a request when the terms in an instruction "have a 'technical meaning peculiar to the law.' " [Citations.] No such duty is imposed when the terms "are commonly understood by those familiar with the English language...." ' " (Ibid.; see also People v. Anderson, supra, 64 Cal.2d at p. 639 ["The law is settled that when terms have no technical meaning peculiar to the law, but are commonly understood by those familiar with the English language, instructions as to their meaning are not required."].)
C. Analysis
As already discussed, the defense objected to the use of the words "prima facie" in the first paragraph of the challenged instruction, which essentially informed the jury that evidence Williams left the hotel premises without paying or offering to pay for his room "shall be prima facie evidence" that he "obtained use of [the] accommodations with the intent to defraud the proprietor or manager." Williams asserts that a reasonable jury, not understanding the meaning of the words "prima facie, " would "read that instruction as: 'Evidence that a person left the premises of a hotel, motel, or inn without paying or offering to pay for use of facilities or accommodation, shall be evidence of the following: That the person obtained use of the facilities or accommodations with intent to defraud the proprietor or manager.' "
Evidence Code section 602 provides: "A statute providing that a fact or group of facts is prima facie evidence of another fact establishes a rebuttable presumption." (Italics added.)
Merriam-Webster's Collegiate Dictionary (11th ed. 2006) at pages 985-986 defines the adjective "prima facie" as "true, valid, or sufficient at first impression" and "legally sufficient to establish a fact or a case unless disproved." (Italics added.)
Assuming, without deciding, that the words "prima facie" as used in the term "prima facie evidence" have a technical meaning peculiar to the law, we conclude the court did not commit instructional error or violate Williams's federal and state due process rights by giving the challenged instructions. Although, as the Attorney General points out, the words "prima facie" as used in the first paragraph of the challenged instruction were left undefined, the second paragraph of the same instruction explained to the jury what "prima facie" evidence means and how the jury could use it. As noted, ante, that second paragraph informed the jury that if the evidence established beyond a reasonable doubt that Williams left the hotel premises without paying or offering to pay for his use of facilities or accommodations, the jury "may, but [was] not required to, infer" (italics added) that he acted with intent to defraud.
In deciding to give the instruction, the court observed: "A jury doesn't know what the words 'prima facie' mean."
Thus, by instructing the jury in the second paragraph of the instruction that it was permitted to infer, but was not required to infer, that Williams acted with intent to defraud if it found beyond a reasonable doubt that he left the hotel premises without paying or offering to pay, the court properly conveyed to the jury the meaning of the term "prima facie evidence" used in the first paragraph of that instruction.
Williams's claim that the court's use of the words "prima facie" in the first paragraph of the instruction lessened the People's burden of proof is unavailing for the additional reason that the court sua sponte added a third paragraph that clearly and unambiguously instructed the jury that "you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt." (Italics added.)
In light of our conclusion, we need not reach the Attorney General's claim that Williams forfeited his claim of instructional error by failing to make in the trial court a specific request for clarification or amplification with respect to the term "prima facie." We affirm the judgment in case No. SCD213464.
DISPOSITION
The judgments in case Nos. SCD213463, SCD213464, and SCD199422 are affirmed.
WE CONCUR: HUFFMAN, Acting P. J., HALLER, J.